Skip the trials for terrorists

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By Benjamin Wittes and Jack Goldsmith
Friday, November 19, 2010

The Obama administration's critics are missing the point on Ahmed Ghailani. Their reaction to his acquittal this week on 284 criminal counts and conviction on only one exaggerates both the vices of civilian courts and the virtues of military commissions. And it elides an important alternative to trial in either forum - military detention without trial - that today looks more attractive than ever as a means for incapacitating terrorists.

The decision by the Manhattan federal court jury Wednesday in the case of the 1998 U.S. embassy bombings in Africa - the first federal court trial of a Guantanamo detainee - has triggered a predictable political backlash against President Obama. The prosecution was designed to showcase the feasibility of terrorist trials in civilian courts. Instead, it has turned into a near-miss that highlights the risks of those cases.

In response, Rep. Peter King (R-N.Y.) sounded a common theme in demanding that the Obama administration "abandon its ill-advised plan to try Guantanamo terrorists" in federal court - which he termed "absolute insanity" - and in insisting that terrorists instead face trial in military commissions. This is the wrong lesson to draw from this case.

The government had a difficult time convicting Ghailani in large part because presiding Judge Lewis Kaplan excluded a key witness that the government had acknowledged it knew about through coercive interrogations. Many critics of civilian trials claim that this problem would not have occurred in a military commission, but that is very probably wrong. The legal standard for excluding such evidence in military commissions would depend on the military judge's sense of the "interests of justice." The government would be foolish to rely on military judges' willingness to admit evidence obtained - even in a derivative fashion - as a result of coercion. There is not much reason to think that the government would have had an easier time against Ghailani on this score if it had proceeded in a commission.

There is, however, reason to think that a commission trial would have presented problems not present in Ghailani's civilian trial. One central problem is that the conspiracy charge on which Ghailani was nabbed might not be valid in military commissions; three sitting Supreme Court justices have said as much, and many scholars agree. On this and other issues from evidentiary and procedural rules to fundamental constitutional questions, military commissions raise legal uncertainties that have yet to be sorted out by appellate courts. Civilian courts, by contrast, are tried and true. They have produced a great many terrorist convictions, and a verdict in one is much easier to defend on appeal.

While the Ghailani verdict does not argue for military commissions over civilian trials, it does highlight the attraction of military detention without trial at all. This is the traditional ground on which enemy soldiers have been held in wartime. The government has a lesser burden in justifying military detention before a habeas corpus court than it has in convicting a terrorist of a crime at trial. The courts broadly accept that Congress has authorized military detention and that it is a perfectly legitimate form of terrorist incapacitation. Yet the Obama administration, while embracing the legality and necessity of military detention, has expressed a strong preference for trials instead. The Post reported last weekend that the administration is rethinking that stance with respect to the Sept. 11 conspirators, and Ghailani's verdict should spur that reconsideration.

A year ago Thursday, Attorney General Eric Holder said in connection with trying the Sept. 11 cases in a civilian court: "Failure is not an option. These are cases that have to be won. I don't expect that we will have a contrary result." But the Ghailani prosecution illustrates, and any fair trial assumes, that failure is indeed an option.

Imagine that Ghailani had been acquitted on all counts. The administration would then have faced a terrible choice between releasing him or - as the attorney general and Judge Kaplan have said is possible - continuing to hold him in military detention indefinitely despite his acquittal. The first option would be unsafe for the nation and suicidal politically. The second option would look terrible in light of an acquittal and would harm the legitimacy of every subsequent terrorist trial.

This terrible choice - which came close to becoming a reality - reveals why military detention is fundamental and appropriate here. The reason the first option is unsafe and the second option is available is that Ghailani helped conduct a major terrorist operation on behalf of a group with which the country is at war. Military detention was designed precisely to prevent such fighters from returning to the battlefield. It is a tradition-sanctioned, congressionally authorized, court-blessed, resource-saving, security-preserving, easier-than-trial option for long-term terrorist incapacitation.

This is not, we want to emphasize, an argument that either civilian trials or military commissions are illegitimate venues for terrorist trials or that they should never be used. Rather, it is a pragmatic argument in favor of a lawful alternative whose use, given the difficult events of the past nine years, now makes more sense than trial in any forum for a dwindling group of Guantanamo detainees whose prosecutions are more trouble and risk than they're worth.

Benjamin Wittes is a senior fellow at the Brookings Institution. Jack Goldsmith teaches at Harvard Law School and served as an assistant attorney general in the Bush administration. Both are members of the Hoover Institution's Task Force on National Security and Law.


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